The mere presence of liquor in an individual's luggage is not sufficient to establish knowledge of the liquor, particularly when the individual has entrusted the packing and unpacking of the luggage to a servant.

Judgment

IMAM, J. : The appellant was tried by a Magistrate of 1st Class of Abu Road for an offence punishable under Ss. 65(a) and 66(b) of the Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), hereinafter referred to as the Act. His servant Gangaram Makarji, accused No. 2, was also tried along with him under the aforesaid sections. A third accused in the case was the driver of the jeep car but the Magistrate did not frame any charge against him. He was accordingly discharged. The appellant was sentenced by the Magistrate to 6 months S. I and a fine of Rs. 500 under S. 65(a) of the Act and to 3 months S. I. and a fine of Rs. 500 under S. 66(b) of the Act. The sentences of imprisonment were directed to run concurrently. His servant Gangaram Makarji was sentenced to one month s S. I. and a fine of Rs. 100 under S. 65(a) of the Act and to 15 days S. I. and a fine of Rs. 100 under S. 66(b) of the Act. the sentences of imprisonment were directed to run concurrently.

2. The appellant appealed to the Sessions Judge of Mehsana against his conviction and sentence. The Additional Sessions Judge, who heard the appeal, allowed it and set aside the conviction and sentence of the appellant. Against this order of acquittal the State of Bombay appealed to the Bombay High Court and that Court allowed the appeal, set aside the order of acquittal and convicted the appellant under Ss. 65(a) and 66(b) of the Act and restored the order of conviction and sentence passed by the Magistrate. The appellant obtained special leave to appeal against his conviction and sentence.

3. The facts established that the appellant and his servant Gangaram Makarji travelled from Delhi to Abu Road by the 201 UP train from Delhi which reached Abu Road at 3.45 p. m. on February 1, 1954. The appellant travelled in a 1st Class compartment while his servant travelled in a servants compartment. At Abu Road station the appellant detrained and his servant took out his luggage and followed his master to the 1st Class waiting room. After sometime the appellant s luggage was loaded into the trailer attached to a jeep car the driver of which was the discharged accused No. 3. Sometime later, the appellant got into the jeep and when the jeep was about to start, Jamedar Shri Sheikh stopped it in order to make a search in connection with a suspected offence. The appellant asked his servant Gangaram Makarji to produce the keys. The luggage was thereafter searched. On search 76 bottles of foreign liquor were found in the trunks belonging to the accused as well as two half consumed bottles, one of which was in an attache case. The appellant, his servant Gangaram Makarji and the driver of the jeep were arrested. On these facts, it is the case of the prosecution that offences under Ss. 65(a) and 66(b) of the act were committed by the appellant.

4. The appellant admits the ownership of the luggage but his case was that he did not know the existence of these numerous bottles of foreign liquor in his trunks or his attache case, which has sometimes been described as a suit-case. His case was that his servant Gangaram Makarji always packed and unpacked his trunks and that he himself had nothing to do with it in this respect. His case further was that a man in his position and upbringing never looked to these matters personally and that his servant attended to the work of packing and unpacking his luggage and even assisted him in putting on and taking off his clothes and that his servant accompanied him wherever he goes. His servant at all times kept the keys of his boxes as well as his money. In paragraph 5 of the written statement the appellant stated that he apprehended that his servant must have brought these bottles for some purpose but without his knowledge and consent and that had he known of it he would have never allowed him to do such a foolish act.

5. The defence of Gangaram Makarji, the servant, was that he had bought these bottles of liquor for one Punmaji Devaji who had given